Sixth Judicial Region

PEOPLE OF THE PHILIPPINES, CRIMINAL CASE NO.17-719

VICENTE QUELESTE Y MARABARA

Accused (detained).

x-----------------------------------------------x

MEMORANDUM FOR THE ACCUSED

VICENTE QUELESTE Y MARABARA, through the undersigned Atty. Nestor

Jeremy B. Moreno, before this Honorable Court, most respectfully submit thisMEMORANDUM as follows: PREFATORY STATEMENTThat on or about January 20, 2017 in Zarraga, Iloilo, Philippines, and withinthe jurisdiction of this Honorable Court, above mentioned accused, VicenteQueleste y Marabara, A Municipal Treasurer, was subjected to cashexamination of the cash and accounts from the accountable forms, by COAAuditors Lulu Palmes and Shiela Marcela, in his office in the Zarraga MunicipalHall, finding then and there fail to produce and to have fully forthcoming acash shortage the amount of NINE HUNDRED NINETY THOUSAND PESOS (P990,000.00) which amount he allegedly willfully, unlawfully, and feloniouslytook and misappropriated for his own personal use and benefit to the damageand prejudice of the Government in the amount aforestated and to the publicinterest.

STATEMENT OF FACTSIn order that this honorable court may be enlightened and guided in thejudicious disposition of the above-entitled case, cited hereunder the material,relevant and pertinent facts of the case to wit:

1. On June 28, 2017 the Office of the Provincial Prosecutor issued a

resolution in the Inquest investigation of the case docketed as I.S. NO. VI-11INQ-16E-00492 finding probable cause against Vicente Queleste y Marabara and was charged with an information on June 28, 2017.

2. The complainants in this case are Lulu Palmes and Shiela Marcela, State Auditors II of the Commission on Audit who were assigned to and conducted the cash examination against accused, Vicente Queleste y Marabara, the Municipal Treasurer of the Municipality of Zarraga.3. To prove its case, the prosecution presented Lulu Palmes and Shiela Marcela, COA State Auditors II. Both have testified that they went to the office of Mr. Vicente Queleste, the Municipal Treasurer of Zarraga, in the morning of January 20, 2017 from 9:00 AM to 12:00 NN, as proved by the Request for Authority to Travel and Office Order No. 2017- 003 dated January 13, 2017, requesting to conduct cash examination on the cash and accountabilities of Mr. Vicente Queleste.

4. Upon the conduct of cash examination on the cash and accountabilities

of Mr. Vicente Queleste, Municipal Treasurer of Zarraga, the complainants allegedly found a shortage of P990,000 on the accused’s accountabilities. This was stated in their Report of Cash Examination as attached in the Information.

5. To prove the innocence of the accused, the defense presented the

following witnesses: Mr, Vicente Queleste, the accused who testified that the same complainants went to his office to conduct a cash examination. The complainants arrived to his office at around 9:00 AM and went straight to his table. They told the accused that they will be conducting the said cash examination. The accused presented all the cash in his position as an accountable officer. The auditor Shiela Marcela counted the cash and returned the same to him. He returned the said cash to his vault and the auditors went to do some paperworks on their laptop. Afterwards, the auditors asked the accused to sign a document that they printed, but he did not sign the same immediately as he was talking to a co-worker. Auditor Palmes excused herself and requested the accused to sign the document for they are in hurry to leave. The accused felt compelled to affix his signature and so he signed it. Afterwards, the auditors left the office of the accused. That was around 12:00 NN. 6. To further strengthen the defense of the accused, the defense presented Mrs. Luisa Maria De Jesus, collecting officer of the Municipal Treasurer’s Office of the Municipality of Zarraga. She testified that on January 20, 2017, she reported for work at the Municipal hall of Zarraga, Iloilo at 8:00 AM in the morning. Then at about 9:00 AM of the same day, COA officers arrived and conducted a cash examination. She also testified that she was not aware of the same being conducted on that very day. She said that there was no notice or information regarding the cash examination to be conducted by COA. She testified that she was present at the time when the examination was conducted as she was working on her table with her regular paperwork. She was not questioned nor examined by the COA Auditors, together with her other two (2) collecting officers. She further testified that the COA Officers left the office at 12:00 NN of the same day. They never returned in the afternoon or in any other day.

STATEMENT OF THE CASE

Criminal Case No. 17-719, the accused VICENTE QUELESTE y MARABARA is

Art. 217. Malversation of public funds or property;

Presumption of malversation. — Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same or shall take or misappropriate or shall consent, through abandonment ornegligence, shall permit any other person to take such publicfunds, or property, wholly or partially, or shall otherwise be guiltyof the misappropriation or malversation of such funds or property,shall suffer:1. The penalty of prision correccional in its medium and maximumperiods, if the amount involved in the misappropriation ormalversation does not exceed two hundred pesos.chanroblesvirtual law library2. The penalty of prision mayor in its minimum and mediumperiods, if the amount involved is more than two hundred pesosbut does not exceed six thousand pesos.chanrobles virtual lawlibrary

3. The penalty of prision mayor in its maximum period to reclusion

temporal in its minimum period, if the amount involved is morethan six thousand pesos but is less than twelve thousandpesos.chanrobles virtual law library

4. The penalty of reclusion temporal, in its medium and maximum

periods, if the amount involved is more than twelve thousandpesos but is less than twenty-two thousand pesos. If the amountexceeds the latter, the penalty shall be reclusion temporal in itsmaximum period to reclusion perpetua.chanrobles virtual lawlibrary

In all cases, persons guilty of malversation shall also suffer the

penalty of perpetual special disqualification and a fine equal to theamount of the funds malversed or equal to the total value of theproperty embezzled. The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use. (As amended by RA 1060).

STATEMENT OF ISSUES 1. Whether or not all the elements of the crime have been proven beyond reasonable doubt. 2. Whether or not the conduct of cash examination was proper, regular, complete and in compliance with Revised Cash Examination Manual. 3. Whether or not the accused is guilty beyond reasonable doubt of the crime charged.

DISCUSSION

All the elements of the crime of malvesation have not been provenbeyond reasonable doubt.

The crime of malversation of public funds is defined and penalized under

Article 217 of the Revised Penal Code, viz:

ART. 217. Malversation of public funds or property. Presumption

of malversation. Any public officer who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence, shall permit any other person to take such public funds or property, wholly or partially, or shall otherwise be guilty of the misappropriation of malversation of such funds or property, shall suffer: xxxxxxxxx The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing fund or property to personal uses.

The elements essential for the conviction of an accused under the above penalprovision are:

1. That the offender is a public officer;

2. That he has the custody or control of funds or property by reason of the duties of his office; 3. That the funds or property are public funds or property for which he is accountable; and 4. That he appropriated, took, misappropriated or consented or through abandonment or negligence, permitted another person to take them. (Agullo vs. Sandiganbayan, 414 Phil. 86 (2001)

There can hardly be no dispute about the presence of the first three elements.The accused is a public officer occupying the position of a Municipal Treasurerat the Zarraga Municipal Hall. In that capacity, he receives money or propertybelonging to the local government for which he is bound to account. It is thelast element, i.e., whether or not the accused really has misappropriatedpublic funds, where the case focuses itself on.In malversation of public funds, the prosecution is burdened to prove beyondreasonable doubt, either by direct or circumstantial evidence, that the publicofficer appropriated, misappropriated or consented, or through abandonmentor negligence, permitted another person to take public property or publicfunds under his custody. Absent such evidence, the public officer cannot beheld criminally liable for malversation. Mere absence of funds is not sufficientproof of conversion; neither is the mere failure of the public officer to turnover the funds at any given time sufficient to make even the prima facie case.In fine, conversion must be proved. (Legrama vs Sandiganbayan and People,G.R. No. 178626, June 13, 2012)

In this case, the COA Auditors were never able to prove that there wasconversion on the part of the accused as regards the alleged shortage whichthey determined based on a cash examination conducted against the accused.Thus, in a string of categorical pronouncements, this Court has consistentlyand emphatically ruled that the presumption of conversion incarnated inArticle 217, paragraph (4) of the Revised Penal Code is by its very naturerebuttable. To put it differently, the presumption under the law is notconclusive but disputable by satisfactory evidence to the effect that theaccused did not utilize the public funds or property for his personal use, gainor benefit.

Accordingly, if the accused can present adequate evidence that can nullify anylikelihood that he had put the funds or property to personal use, then thatpresumption would be at an end and the prima facie case is effectivelynegated. The Court has repeatedly said that when the absence of funds is notdue to the personal use thereof by the accused, the presumption is completelydestroyed; in fact, the presumption is never deemed to have existed at all.The cash examination was not conducted properly, regularly,completely and in compliance with Revised Cash Examination Manual.

The landmark case of Tinga v. People (G.R. No. 57650, 160 SCRA 483) haslaid down the doctrinal standards to follow in convicting an accused chargedwith malversation.

Upon the attendant facts and circumstances, it has to be held that thepresumption juris tantum in Article 217 of the Revised Penal Code reading:

The failure of a public officer to have duly forthcoming any public

funds or property with which he is chargeable upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal uses.

applies only if and when there was thorough, complete, regular, proper andcomprehensive audit examination to accountabilities of the accountable officerto be able to determine whether there are missing funds that cannot beexplained upon demand for explanation or if there were shortage upon theconduct of the said examination. In the same case the Court reiterated, “ [t]heprima facie presumption under Article 217 of the Revised Penal Code arises ifthere is no issue as to the accuracy, correctness and regularity of the auditfindings and if the fact that funds are missing is indubitably established," hasno application in the instant case in the light of the haphazard examination ofthe cash accountability of petitioner in violation of the Manual of Instructionsof Treasurers and Auditors and the credible explanation of petitioner that the"missing" funds would have been "discovered" if only the auditor took intoconsideration the contents of the two vaults in Sindangan and Tampilisan andthe fact that her collection in Dipolog City were deposited with the NFACashier. In the instant case, there was no compliance with the Revised CashExamination Manual of COA in the conduct of cash examination. No propernotice or demand was made to the accused that a cash examination will beconducted on the same date and he is demanded to produce his cash andaccountable forms.

Thus, it can only be deduced that without comprehensive and thorough cashexamination to the accountables of the accused, no prima facie presumptionof criminal liability could arise from his failure to explain the alleged shortageof his accounts during the conduct of cash examination as the same was notyet remitted to him during that time. Had the auditors waited for the remittingof the same by the other collecting officers at the end of the day, the allegedshortage would have been balanced, which will exonerate the liability of theaccused from this charge.

Also, in the same Tinga case, the Court specifically established the following: Considering the gravity of the offense of Malversation of Public Funds, accounts should be examined carefully and thoroughly to the last detail, with absolute certainty in strict compliance with the Manual of Instructions. Imperative it is likewise that sufficient time be given examined officers to reconstruct their accounts and refute the charge that they had put government funds to their personal uses. Access to records must be afforded them within reasonable time after audit when disbursements are still fresh in their minds and not years after when relevant official records may no longer be available and the passage of time has blurred human memory (Tinga v. People, G.R. No. 57650, 160 SCRA 483 [1988]). The audit examination conducted by Auditor Eway failed to establish that the funds were indeed missing since she did not follow standard auditing procedures by not including in her examination the funds petitioner kept in the vaults located in Tampilisan and Sindangan.

Thus, it is primarily required that full audit examination be conducted to

ensure compliance with Revised Cash Examination Manual for COA Auditors.In the instant case, only the accused was subjected to cash examination atthe time when there are other collecting officers who also have accountableforms and cash accountabilities due to be remitted to the accused before theend of day’s work. The cash examination was conducted only during themorning of January 20, 2017, from 9:00 AM – 12:00 NN. No comprehensivecash examination was conducted as the cash collections for the day due to theaccused was not yet remitted by the other three (3) collecting officers astestified to by Mrs. Luisa Maria De Jesus, one of the collecting officers in theTreasurer’s Office.

Accused’s signing of the audit report cannot be considered prima facie

evidence of his guilt. Following this Court’s ruling in Tinga v. People, (160SCRA 489) petitioner’s signature thereon only meant an acknowledgment thata demand was made, but not to the statement of her accountability as theexamination was not complete.

On Page 17, Item G, of the Revised Cash Examination Manual, the sameprovides that the Auditor should examine simultaneously all funds in thecustody of the Accountable Officer and conduct cash count of all cash of theAO in the office and its immediate vicinity. It means that there should be asimultaneous cash count of all accountable officers of the office or agencyduring the conduct of cash examinations. In the case at bar, only the accusedwas subjected to the cash examination, contrary to the requirement of theManual. As testified to by the defense witness Mrs. Luisa Maria De Jesus, shewas not, together with her other 2 collecting officers, conducted with the cashexamination as was conducted to the accused at the time.

In the same Manual, Item M.1, it provides that the auditor is required toconduct examinations thoroughly and completely in every case to the lastdetail, including verificiation/reconciliation of accountable forms received andissued and the various records of collections and disbursements as well asentries in the Cashbook/CRR/CDR/CkDR or its equivalent. No such thoroughexamination was conducted based on the testimonies of the complainants MsLulu Palmes and Ms Shiela Marcela.

No accomplishment of the Auditor’s certification at the Cashbook/CRR/CDR or

its equivalent was made at the time of cash examination. No such certificationappears in the record.

Furthermore, in the same Manual, a Copy of the Report of Cash Examination

or General Form No. 74(A), a narrative report and its supporting exhibits andschedules, letter of demand, and the written explanation of the AO is requiredto be presented to the prosecuting officers for the purpose of prosecuting theAccountable Officer. No such documents or certificates are on the record,further violating the Manual which requires full compliance before chargingthe Accountable Officer of Malversation of Public Funds or Property.

Also, in the same Manual, on Page 29, it requires that in case of CashShortage, the Auditor must DEMAND at once from the AO the immediateproduction of the missing funds the moment the amount of shortage isdefinitely established and the demand must be in writing and acknowledgedas received by the AO. The same must be specific and must be given within72 hours from his/her receipt of the letter of demand. No such proof or writingwas made part of the record. As enunciated in Tinga, “Accounts should beexamined carefully and thoroughly "to the last detail," "with absolutecertainty" in strict compliance with the Manual of Instructions. Special noteshould be taken of the fact that disallowances for lack of pre-audit are notnecessarily tantamount to malversation in law. Imperative it is likewise thatsufficient time be given examined officers to reconstruct their accounts andrefute the charge that they had put government funds to their personal uses.Access to records must be afforded them within a reasonable time after auditwhen disbursements are still fresh in their minds and not years after whenrelevant official records may no longer be found.”

The prosecution failed to prove the guilt of the accused beyond

reasonable doubt. Thus the presumption of innocence still stands infavor of the accused.All the elements of the crime, which are necessary to convict the accused ofthe crime charged, were not clearly and convincingly established in the trial.The prima facie presumption that the failure of a public officer to have dulyforthcoming any public funds or property with which he is chargeable, upondemand by any duly authorized officer, shall be prima facie evidence that hehas put such missing funds or property to personal use has not beenestablished in the light of the haphazard examination of the cashaccountability of petitioner in violation of the Revised Cash ExaminationManual of the Commission on Audit.

No complete, thorough, regular, and comprehensive cash examination was

conducted against the accused as mandated by the said Manual. As such, Thepresumption was not established. Accordingly, if the accused is able to presentadequate evidence that can nullify any likelihood that he had put the funds orproperty to personal use, then that presumption would be at an end and theprima facie case is effectively negated. This Court has repeatedly said thatwhen the absence of funds is not due to the personal use thereof by theaccused, the presumption is completely destroyed; in fact, the presumption isnever deemed to have existed at all. Hence, the prosecution miserably failedto establish the essential elements of the crime of Malversation as penalizedunder Article 217 of the Revised Penal Code. All told, the guilt of the accusedwas not proven beyond reasonable doubt.

PRAYER

WHEREFORE, it is respectfully prayed for of this Honorable Court that

judgment be rendered acquitting the accused from the crime charged.

Defendants likewise prays for such other and further relief as this honorablecourt may deem just and equitable in the premises.